Exceptions to Preservation & Evolving Standards of IAC June 12, 2020 Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Preservation Cherise Bacalski Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
When is an issue preserved? • New issue/claim/theory • New argument • New precedent • New interpretation • Invited error • A ruling—not an objection—preserves an issue Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
When is an issue preserved? “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it. To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up). Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
New issue/claim/legal theory Appellate courts “view issues narrowly, but . . . new arguments , when brought under a properly preserved issue or theory, do not require an exception to preservation. Such arguments include citing new authority or cases supporting an issue that was properly preserved.” Appellate courts refuse to consider on appeal “entirely new legal theories.” State v. Johnson, 2017 UT 76, ¶ 15 n.2. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
New precedent “[This issue] is an entirely distinct legal theory, and is thus a new claim or issue. So, if the appellant . . . had preserved the issue . . . below, and had simply cited different precedent or clarified their argument . . . on appeal, they would not have required an exception to preservation.” State v. Johnson , 2017 UT 76, ¶ 15 n.2. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
New interpretation, same text “Here, Garcia presented the question of how the statute should be interpreted to the district court, and the district court ruled on it . . . .Garcia’s failure to invoke the constitutional avoidance canon does not deprive us of the ability to employ that canon to interpret the statute. Garcia preserved the statutory interpretation and insufficient evidence issues at the district court and on appeal and, thus, both are fair game on certiorari.” State v. Garcia , 2017 UT 53; See also State v. Salgado , 2018 UT App 139. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Invited error, specific language • “Although Williams initially objected to the admission of the entire call, when the court gave him the opportunity to argue for redaction, he abandoned that objection with the word ‘no.’” • “No , more that he’s dangerous when he’s on drugs.” • “The court found that it could not make that redaction because the father never made such a statement during the call.” State v. Williams , 2020 UT App 67. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Circle back! Due process claim preserved where defendant argued bad faith—which was an aspect of due process—and where defendant failed to cite due process clause or caselaw, because (1) the court cut off counsel, (2) counsel circled back and asked for a ruling for preservation purposes, and (3) the court ruled on it. State v. Rogers , 2020 UT App 78. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Citing authority “Defense counsel’s due process argument could have been more complete, but the district court denied counsel’s motion before he had finished his argument, leaving us to wonder what counsel would have argued had he been given the opportunity. Further, the court appeared to apply a Tiedemann analysis, and thus the issue was presented to the district court in such a way that the court had an opportunity to rule on it.” State v. Rogers , 2020 UT App 78; see also State v. Doyle , 2018 UT App 239. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Get a ruling Rulings—not objections—preserve issues. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Get a ruling “[O]ne rather vaguely-worded statement” preserved an issue for appeal because the trial court ruled on it. State v. Florez , 2020 UT App 76, fn 3. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Exceptions to Preservation Cherise Bacalski Freyja Johnson Emily Adams Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Exceptions to Preservation • Ineffective assistance of counsel • Plain error • Exceptional circumstances Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Ineffective Assistance of Counsel Cherise Bacalski Freyja Johnson Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Ineffective Assistance of Counsel • Deficient Performance • Prejudice • Utah Rule of Appellate Procedure 23B Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Ineffective Assistance of Counsel In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.” U.S. Const. amend. VI Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Ineffective Assistance of Counsel State v. Scott , 2020 UT 13 (citing Strickland v. Washington ): To prevail on this claim, a defendant must demonstrate that • (1) his counsel’s performance was deficient in that it “fell below an objective standard of reasonableness” and • (2) “the deficient performance prejudiced the defense,” meaning that there is a reasonable likelihood of a different result without the deficient performance.
Deficient Performance Cherise Bacalski Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Deficient performance under Strickland “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness . “ More specific guidelines are not appropriate . “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances .” Strickland , 466 U.S. at 687–88. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Policy Behind the Doctrine “Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” . . . . Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Policy Behind the Doctrine . . . . “In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland , 466 U.S. at 687–88, 696 (emphases added). Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Recent clarifications in Utah • Is it necessary to prove that “no competent attorney” would have acted as counsel did? • Does it matter if they attorney had a “conceivable tactical basis” for her actions or omissions? • Does it matter if the attorney’s action was “strategic”? • Does it matter if the attorney’s actual rationale was wrong or misguided? • Can counsel be ineffective for failing to raise an argument unsupported by then-existing legal precedent? • What role does an attorney’s investigation play in the analysis? • What role do professional standards play in the analysis? Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Begin with a presumption of reasonableness “ Strickland instructs that a defendant must ultimately overcome the presumption that an attorney’s decision ‘falls within the wide range of reasonable professional assistance.’ Strickland , 466 U.S. at 689, 104 S.Ct. 2052. If an attorney’s decisions can be explained by a reasonable trial strategy, the defendant has necessarily failed to show deficient performance.” State v. Gallegos , 2020 UT 19, ¶ 56. Emily Adams | Freyja Johnson | Cherise Bacalski Phone: 801.924.0854 Email: appeals@theappellategroup.com
Recommend
More recommend
